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DEUTERONOMY — 21:23 bury

DEUT1073 Every life valuable is equally inviolable, including that of criminals, prisoners and defectives. In the title to life and its value, being infinite, there can be no distinction whatever between one person and another, whether innocent or guilty (except possibly persons under final sentence of death) (See Orah Hayyim, Mishnah Berurah, Bi'ur Halakhah, 329:4), whether healthy or crippled, demented and terminally afflicted. Thus, even a person's inviolability after death and his rights to dignity are decreed in the Bible specifically in relation to capital criminals, treated like everyone else "in the image of God" [this verse and Nahmanides a.l.; see also Hullin 11b]. Insane persons can sue for injuries received, even though they cannot be sued for inflicting them because of their legal incompetence. (Bava Kamma 8:4) The saving of physically or mentally defective persons sets aside all laws in the same way as the saving of normal people (See Orah Hayyim, Mishnah Berurah, Bi'ur Halakhah, 329:4).

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DEUTERONOMY — 21:23 bury

DEUT1077 The earliest leading responsum on autopsy is authored by 18th century Rabbi Ezekiel Landau (Noda bi-Yehudah, Mahadura Tanina. Yoreh De'ah, No. 210. Paris. Lang Pres, 1947). It is this responsum upon which all subsequent inquiries and rabbinical and legal decisions are based. … Rabbi Landau [ruled] that autopsy constitutes a desecration of the dead, and is only permissible to save the life of another patient who is immediately at hand (lefaneinu). ... "if we would be lenient in this matter, heaven forbid, they would dissect all dead people in order to learn the arrangement of the internal organs and their functions, so as to know what therapy to give to the living." ... The prohibition of desecrating or disgracing the dead is based upon the biblical passage [this and preceding verses]. The Talmud (Sanhedrin 47a) interpret this phrase to mean that just as hanging all night is a disgrace to the human body, so too any other action which constitutes a disgrace to the deceased is prohibited. If the Torah was concerned for the body of a convicted criminal, certainly, a fortiori, the body of a good citizen should be treated with the proper respect, and be properly interred without being subjected to shame or disgrace. ... The next major objection in Jewish law against autopsy is the multi-faceted problem of burial of the dead. Firstly, the Biblical phrase, "Thou shalt surely bury him… "[this verse], tells us that it is a positive commandment to bury the dead (Sanhedrin 46b). Secondly, whoever keeps his dead unburied overnight transgresses a negative commandment. This is deduced from the earlier part of the same Biblical phrase: "his body shall not remain all night…" Thirdly, the body must be interred whole, for if one leaves out even a small portion, it is as if no burial at all took place (Jerusalem Talmud, Nazir 7:1). ... A fourth facet of the burial problem is the question as to whether burial, in addition to averting disgrace (by later putrefaction of the body), also represents atonement for the sins committed during life (Sanhedrin 46b). If one performs an autopsy, one is in fact transgressing the prohibition of delaying burial of the dead. If one fails to return all removed organs to the body for burial, one also prevents atonement since such a burial is incomplete. Another serious objection to autopsy in Jewish law is the prohibition of driving any benefit from the dead as deduced in the Talmud (Avodah Zara 29 and Nedarim 48a). ... The consensus of rabbinic opinion today seems to permit autopsy only in the spirit of the famous responsa of the Noda bi-Yehudah, Rabbi Ezekiel Landau, i.e., if it may directly contribute to the saving of a life of another patient at hand. In the case of hereditary diseases, the family or future offspring of the deceased are considered to represent patients at hand and this autopsies are allowed.

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DEUTERONOMY — 22:2 return

DEUT1103 Non-therapeutic life–saving intervention is Talmudically mandated on independent grounds. The Talmud, Sanhedrin 73a, posits an obligation to rescue a neighbor from danger such as drowning or being mauled by an animal. This obligation is predicated upon the scriptural exhortation with regard to the restoration of lost property, "And thou shalt return it to him" [this verse]. On the basis of a pleonasm in the Hebrew text, the Talmud declares that this verse includes an obligation to restore a fellow-man's body as well as his property. Hence, there is created an obligation to come to the aid of one's fellow man in a life-threatening situation. Noteworthy is the fact that Maimonides (Commentary on the Mishnah, Nedarim 4:4; cf. Maimonides, Mishneh Torah, Hilkhot Nedarim 6:8), going beyond the example supplied by the Talmud, posits this source as the basis of the obligation to render medical care. Maimonides declares that the Biblical command and "and thou shalt return it to him" establishes an obligation requiring the physician to render professional services in life-threatening situations. Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property. Maimonides views this as a binding religious obligation.

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